Discussion of Family Law Appeals in Harris, Montgomery, Fort Bend, Brazoria Counties & Across Texas

Buyer’s Remorse: Challenging MSAs, Opinions, Sept. 21, 2017

The Fourteenth Court of Appeals released a published opinion this morning, In re C.C.E., No. 14-16-00571-CV, on the revocability of MSAs.

Four years after mother and father divorced, the mother filed a mod seeking changes in visitation and child support. The parents attended mediation and signed a binding, irrevocable MSA which included an expanded SPO, an injunction against corporal punishment, communication through OFW, changes to the rights and duties, and designating the child’s elementary school. The MSA also included a provision which barred the mother from seeking an increase in child support for at least 13 months. The parties then signed an agreed order, stating they agreed to the order in form and substance.

Two and a half months later, and before the trial court had signed the agreed order, the mother sought to revoke her consent to the agreement. After a hearing, the trial court signed the agreed order. There was no reporter’s record from the hearing. (If you’re like me, this is the point at which you just know in your appellate guts that this is going to be affirmed)*

The trial court also issued findings of fact and conclusions of law which the mother did not challenge on appeal. These FF/CL include the MSA is valid under TFC 153.0071(d), that the mother’s claims of domestic violence predate not only her signing the proposed agreed order but the prior order, and that there was no allegation that domestic violence occurred any time pertinent to or during the suit or mediation.

In her motion for new trial, the mother argued: 1) the MSA–and thus the agreed order–was void because it restricted the parties’ right to seek changes in child support; 2) the MSA contained language making it subject to the court’s approval and thus the mother could withdraw her consent before the order was signed; and 3) the MSA was made due to undue influence caused by prior family violence and she was not able to present evidence on the family violence allegations. The MNT was overruled by operation of law and mother appealed.

On appeal, the mother alleged issues which echoed her MNT: 1) the MSA is void because the child support freeze provision is illegal and against public policy; 2) the MSA’s provision that it was subject to the trial court’s approval allowed her to revoke her consent; 3) and that the trial court may not refuse to hear evidence of alleged family violence after the parties have agreed upon an MSA.

On the first issue, the COA presumed, without deciding, that the child support freeze was illegal and violated public policy. But that does not make the entire MSA void, even though the MSA lacked a severability clause. Generally, if a provision in an agreement is illegal or violates public policy, that provision may be severed if it does not constitute the essential purpose of the agreement. The mother did not assert on appeal that the freezing provision cannot be severed and leave the rest of the agreement enforceable. As such, the mother did not brief the point and waived the argument on appeal.

Regarding mother’s argument that she could withdraw her consent to the MSA before the final order was signed because the MSA was “subject to the Court’s approval,” the COA (not surprisingly) disagreed as she could not revoke her consent to an MSA that complied with 153.0071(d).

Finally, regarding the trial court’s refusal to hear evidence on the family violence exception, the COA noted that the mother did not point to any place in the record where the trial court denied her the opportunity to present the evidence and thus the error was not preserved.

The trial court was affirmed.

* I feel like this should be called something like the Point of No Return or the Breaking Point, because it is the inflection point at which the reason and facts gather momentum to the inescapable conclusion.